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)TH Congress \ ^fmatf / Documeni 

1st Session i .->r..NAir. ^ No. 119 



PRIVATE RIGHTS and 
GOVERNMENT CONTROL 



ADDRESS 

DELIVERED AT THE ANNUAL MEETING OF THE 

AMERICAN BAR ASSOCIATION, HELD 

AT SARATOGA SPRINGS, N. Y„ 

SEPTEMBER 4, 1917 

By 
HON. GEORGE SUTHERLAND 

OF UTAH 

PRESIDENT OF THE ASSOCIATION 






PRESENTED BY MR. McCUMBER 
October 5 (calendar day, October 6), 1917.— Ordered to be printed 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

IV17 



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OCT 29 191/ 



V 



PRIVATE RIGHTS AND GOVERNMENT CONTROL. 



Address of the president, George Sutherland, of Utah, at the meeting of the American 
Bar Association, at Saratoga Springs, N. Y., September 4, 1917. 



From the foundation of civil society, two desires, in a measure con- 
flicting with one another, have been at work striving for supremacy: 
First, the desire of the individual to control and regulate his own 
activities in such a way as to promote what he conceives to be his 
own good, and, second, the desire of society to curtail the activities 
of the individual in such a way as to promote what it conceives to 
be the common good. The operation of the first of these we call 
liberty, and that of the second we call authority. Throughout all 
history, mankind has oscillated, like some huge pendulum, between 
these two, sometimes swinging too far in one direction and sometimes, 
in the rebound, too far in the opposite direction. Liberty has degener- 
ated into anarchy and authority has ended in despotism, and this has 
been repeated so often that some students of history have reached the 
pessimistic conclusion that the whole process was but the aimless 
pursuit of the unattainable. I do not, myself, share that view. In 
all probability we shall never succeed in getting rid of all the bad 
things which afflict the social organism — and perhaps it would not be 
a desirable result if we should succeed, since out of the dead level of 
settled perfection there could not come that uplifting sense of moral 
regeneration which follows the successful fight against evil, and which 
is responsible for so much of human advancement — but I am sure that 
in most ways, including some of the ways of government, we are 
better off to-day than we have ever been before. It is, however, 
apparently one of the corollaries of progressive development that we 
get rid of old evils only to acquire new ones. We move out of the 
wilderness into the city and thereby escape the tooth and claw of 
savage nature, which we see clearly, only to incur the sometimes 
deadlier menace of the microbes of civilization, of whose existence we , 
learn only after suffering the mischief they do. To-day, as always, ' 
eternal vigilance is the price of liberty^iberty whose form has 
changed but whose spirit is the same. In the old days it was the 
hberty of person, the hberty of speech, the freedom of religious 
worship, which were principally threatened. To-day it is the liberty 
to order the detail of one's daily life for oneself — the liberty to do 
honest and profitable business — the liberty to seek honest and remun- 
erative investment that are in peril. In my own mind I feel sure that 
there never has been a time when the business of the country occupied 
a higher moral plane; never a time when the voluntary code which 
governs the conduct of the banker, the manufacturer, the merchant, 
the railway manager, has been finer in tone or more faithfully observed 

3 



4 PRIVATE RIGHTS AND GOVERII^MEFT CONTROL. 

than it is to-day ; and yet never before have the business activities of 
the people been so beset and bedeviled with vexatious statutes, prying 
commissions, and governmental intermeddling of all sorts. 

Under our form of government the will of the people is supreme. 
We seem to have become intoxicated with the plenitude of our power, 
or fearful that it will disappear if we do not constantly use it, and, 
inasmuch as our will can be exercised authoritatively only through 
some form of law, whenever we become dissatisfied with anything, we 
enact a statute on the subject. 

If, therefore, I were asked to name the characteristic which more 
than any other distinguishes our present-day political institutions, I 
am not sure that I should not answer, ''The passion for making laws. " 
There are 48 small or moderate-sized legislative bodies in the United 
States engaged a good deal of the time, and one very large national 
legislature working overtime at this amiable occupation, their com- 
bined output being not far from 15,000 statutes each year. The pre- 
vaihng obsession seems to be that statutes, like the crops, enrich the 
country in proportion to their volume. Unfortunately for this notion, 
however, the average legislator does not always know what he is sow- 
ing, and the harvest which frequently results is made up of strange and 
unexpected plants whose appearance is as astonishing to the legislator 
as it is disconcerting to his constituents. 

This situation, I am bound to say, is not wholly unrelated to a 
more or less prevalent superstition entertained by the electorate 
that previous training in legislative affairs is a superfluous adjunct 
of the legislative mind, which should enter upon its task with the 
sweet inexperience of a bride coming to the altar. As rotation 
in crops — if I may return to the agricultural figure — improves the 
soil, so rotation in office is supposed to improve the government. 
The comparison, however, is illusory, since the legislator resembles 
the farmer who cultivates the crops rather than the crops them- 
selves, and previous experience, even of the most thorough character, 
on the part of the farmer has never hitherto been supposed to destroy 
his availability for continued service. 

I think it was the late Mr. Carlyle who is reported to have made the 
rather cynical observation that the only acts of Parliament which 
were entitled to commendation were those by which previous acts 
of Parliament were repealed. I am not prepared to go quite that 
far, though I am prepared to say that in my judgment an extraor- 
dinarily large proportion of the statutes which have been passed 
from time to time in our various legislative bodies might be repealed 
without the slightest detriment to the general welfare. 

Throughout the country the business world has come to look 
upon the meeting of the legislature as a thing to be borne rather 
than desired, and to regard with grave suspicion pretty much every- 
thing that happens, with the exception of the final adjournment, a 
resolution to which end, unless hi&tory has been singularly unob- 
servant, has never thus far been withheld by general request. 

The trouble with much of our legislation is that the legislator 
has mistaken emotion for wisdom, impulse for knowledge, and 
good intention for sound judgment. "He means well" is a sweet 
and wholesome thing in the field of ethics. It may be of small 
consequence, or of no consequence at all, in the domain of law. 
"He means well" may save the legislator from the afflictions of an 



PRIVATE RIGHTS AND GOVERNMENT CONTROL. 5 

accusing conscience, but it does not protect the community from the 
affliction of mischievous and meddlesome statutes. 

A diffused desire to do good — an anxious feeling about progress — 
are not to be derided, of course, but standing alone and regarded 
from the viewpoint of practical statesmanship, they leave something 
to be desired in the way of complete equipment for discriminating 
legislative work. Progress, let me suggest, is not a state of mind. 
It is a fact, or set of facts, capable of observation and analysis — a 
condition of affairs which may be cross-examined to ascertain whether 
it is what it pretends to be. But you can not cross-examine a mere 
longing for goodness — an indefinite, inarticulate yearning for reform 
and the uplift — or an uneasy, vague state of flabby sentimentalism 
about things in general. 

In matters of social conventionality we are still rigidly conserva- 
tive, but in the field of government there is a widespread demand 
for innovating legislation — a craze for change. A politician may 
advocate the complete repudiation of the Constitution and be 
regarded with complacency, if not with approval as an up-to-date 
reformer and friend of the people, but let him appear in public wearing 
a skirt instead of a pair of trousers and the populace will be moved 
to riot and violence. 

The difficult}^ which confronts us in all the fields of human endeavor 
is that we are going ahead so fast — so many novel and perplexing 
problems are pressing upon us for solution — that we become con- 
fused at theu- very multiplicity. Evils develop faster than remedies 
can be devised. Most of these evils, if left alone, would disappear 
under the powerful pressure of public sentunent, but we become 
impatient because the force of the social organism is not sufficiently 
radical and the demand goes forth for a law which wiU instantly 
put an end to the matter. 

The view which prevailed a hundred years ago was that the pri- 
mary relation of the government to the conduct of the citizen was 
that of the policeman — to preserve the peace and regulate the activities 
of the individual only when necessar}^ to prevent injury to other 
individuals or to safeguard the public; in short, to exercise what is 
comprehended under the term "police power." It is true that the 
government was not rigidly confined to these limits, but whenever 
it undertook to go beyond them it assumed the burden of showing 
clearly the necessity for so doing. The whole philosophy found its 
extreme expression in the Jeffersonian aphorism — ''That government 
is best which governs least," while Lord Macaulay's terse summary 
was, "The primary end of government is the protection of the persons 
and property of men." 

Of course with the tremendous increase in the extent and com- 
plexity of our social, economic, and political activities, altera- 
tions in the scope and additions to the extent of governmental 
operations become inevitable and necessary. To this no thought- 
ful person objects, but unfortunately the governmental incursions 
into the new territory are being extended beyond the limits of 
necessity and even beyond the bounds of expediency into the domain 
of doubtful experunent. 

There is, to begin with, an increasing disposition to give authori- 
tative direction to the course of personal behavior — an effort to 
mold the conduct of individuals irrespective of their differing views, 



6 PEIVATE RIGHTS AND GOVERNMENT CONTROL. 

habits, and tastes to the pattern, which for the time being has received 
the approval of the majority. Under this process we are losing our 
sense of perspective. We are constantly bringing the petty short- 
comings of our neighbors into the foreground so that the evil becomes 
overemphasized, while the noble proportions of the good are mini- 
mized by being relegated to the background. We have developed a 
mania for regulating people. We forbid not only evil practices but 
we are beginning to lay the restraining hand of the law upon prac- 
tices that are at the most of only doubtful character. We not infre- 
quently fail to distingTiish between crimes and vices, and we are 
beginning almost to put in the category along with vices and offensive 
habits any behavior which happens to differ from our own. 

I do not, for example, question the moral right of the majority to 
forbid the traffic in intoxicating liquor, nor its wisdom in doing so. 
No doubt the world would be better off if the trade were entirely 
abolished, but some of the States have recently gone to lengths 
hitherto undreamed of in penalizing the mere possession of intoxi- 
cating liquor and — ^since no one can use liquor without having the 
possession of it — thereby penalizing its personal use no matter how 
moderate such use may be. To put the consumer of a glass of beer 
in the penitentiary along with the burglar and the highwayman is to 
sacrifice all the wholesome distinctions which for centuries have 
separated debatable habit from indisputable crime. Such legislation, 
to say the least, constitutes a novel extension of the doctrines of 
penology. Hitherto, laws on the subject have taken the form of 
prohibiting and penalizing the traffic, but not the personal use, which 
seems to have been quite generally regarded as falling outside the 
scope of the criminal law. The use of intoxicants or tobacco, how- 
ever injurious to the user, has not generally been thought to involve 
the element of immorality. Hence the attempt to coerce an aban- 
donment of such use by punitive legislation directed against the user^ 
however desirable the result itself may be, will inevitably run counter 
to the sentiment, still rather widely entertained, that the imposition 
of criminal penalties for any purely seK-regarding conduct, can only 
be justified in cases involving some degree of moral turpitude. 

It does not require a prophet to foresee that laws of this character 
exacting penalties so utterly disproportionate to the offense, can 
never be generally enforced, and to write them into the statutes to 
be cunningly evaded or contemptuously ignored will have a strong 
tendency to bring just and wholesome laws dealing with the liquor 
question into disrepute. 

It is sometimes a matter of nice discrimination to determine, as 
between the hberty of the citizen and the supposed good of the com- 
munity, which shall prevail. The Hberty of the individual to control 
his own conduct is the most precious possession of a democracy and 
interference with it is seldom justified except where necessary to 
protect the liberties or rights of other individuals or to safeguard 
society. If widely indulged, such interference will not only fail to 
bring about the good results intended to be produced but will gravely 
threaten the stability and further development of that sturdy indi- 
viduahsm, to which is due more than any other thing our present 
advanced civilization. 

In passing legislation of this character doubts should be resolved 
in favor of the liberty of the individual and his power to freely deter- 



PRIVATE RIGHTS AND GOVERNMENT CONTROL. 7 

mine and pursue his own course in his own way should rarely be 
interfered with, unless the welfare of other individuals or of society 
clearly requires it. "Human nature," says Mill, "is not a machine 
to be built after a model, and set to do exactly the work prescribed 
for it, but a tree which requires to grow and develop itself on all sides, 
according to the tendency of the inward forces which make it a 
living thing." 

Human nature is so constituted that we freely tolerate in our- 
selves what we condemn in others, and we arc prone to condemn 
traits of character in others simply because we do not fuid the same 
traits in ourselves. Very often tiie evil is in the eye of the beholder 
rather than m the thing belield, for he is a man of rare good sense 
who can always distinguish between an evil thing and his own 
prejudices. 

One objection to governmental interference with the personal 
habits, or even the vices, of the individual is that it tends to weaken 
the effect of the self-convincing moral standards and to put in their 
place fallible and changing conventions as the test of right conduct, 
with the consequent loss of the strengthening value to the individual 
of the free exercise of his rational choice of good rather than evil. 
Enforced discipline can never have the moral value of seZ/-discipline, 
since it lacks the element of cooperating effort on the part of the 
individual, which is the very soul of all personal advancement. 

We may, therefore, well pause to consider whether the benefits 
which will result to society from a given interference of this character 
are sufficiently important to compensate for the loss of that fine sense 
of personal independence which more than any other quality has 
enabled the Anglo-Saxon race to throw off the yoke of monarchical 
absolutism and substitute democratic self-government. It must not 
be forgotten that democracy is after all but a form of government 
whose justification must be estabhshed in the same way that the 
justification of any other form of government is established; namely, 
by what it does rather than by what it claims to be. The errors of a 
democracy and the errors of an autocracy will be followed by similar 
consequences. A foolish law does not become a wise law simply be- 
cause it is approved by a great many people. The successful enforce- 
ment of the law in a democracy must always rest primarily in the fact 
that on the whole it commends itself to a universal sense of justice, 
shared even by those who violate it. Any attempt, therefore, to 
curtail the liberties of the citizen which shocks the sense of personal 
independence of any considerable proportion of the community is 
likely to do more harm than good, not only because a strong 
feeling that a particular law is unjust lessens in some degree the 
reverence for law generally, but because such a law can not be 
successfully enforced, and a law that inspires neither respect for 
its justice nor fear for its enforcement is about as utterly contempt- 
ible a thing as can be imagined. 

Another thing which may well give concern to thoughtful men is 
the tremendous increase during late years in the number and power 
of administrative boards, bureaus, commissions, and similar agencies, 
the insidious tendency of which is to undermine the fundamental 
principle upon which our form of government depends, namely, 
that it is "an empire of laws and not of men," the meaning of which 
is that the rights and duties of the individual as a member of society 



8 PRIVATE RIGHTS AND GOVERNMENT CONTROL. 

must be defined by preestablished laws and not left to be fixed by 
ofiicial edict as tbey may be called into question from time to time. 
The American people have heretofore enjoyed a greater freedom 
from vexatious official intermeddling and arbitrary governmental 
compulsion than perhaps any other people in the world. Despotism 
has found no place among us, because we have been subject to no 
restraint save the impartial restraint of the laWj which has thus far 
stood superior to the will of any official, high or low. 

It is not enough, however, that we should continue free from the 
despotism of a supreme autocrat. We must keep ourselves free 
from the petty despotism which may come from vesting final discre- 
tion to regulate individual conduct in the hands of lesser officials. 
To this end the things which organized society exacts from its mem- 
bers must be particularized as far as practicable by definite and 
uniform rules. Liberty consists at last in the right to do whatever 
the law does not forbid, and this presupposes law made in advance — 
so that the individual may know before he acts the standard of 
conduct to which his acts must conform — and interpreted and ap- 
pfied after the act by disinterested authority, so that the true 
relation to one another of the conduct and the law may be clearly 
ascertained and declared. It is, therefore, of the utmost importance 
that the authority which interprets and executes the law should not 
also be the authority which makes it. The law must apply to all 
alike. The making of law is an exercise of the will of the state; the 
interpretation and application of the law is an exercise of the 
reason of the judge. The legislator concerns himself with the 
question, Is the proposed law just in its general application? The 
official who administers the law has nothing to do with the abstract 
question of its justice; his function is to ascertain what it is and 
whether it has been violated. The two functions are so utterly 
different that the necessity of vesting them in separate hands has 
been long recognized. To confer upon the same man, or body of 
men, the power to make the law and also to administer it would 
inevitably result in despotic government by substituting the shifting 
frontiers of personal command for the definite boundaries of general, 
impersonal law. "The spirit of encroachment," said Washington in 
the Farewell Address, ''tends to consolidate the powers of all the 
departments in one and thus to create, whatever the form of govern- 
ment, a real despotism." 

/ The danger, therefore, which is threatened by the multiplication 
of bureaus and commissions consists in the commingling of these 
powers. The authority conferred upon these administrative bodies 
is becoming less and less limited. The jurisdiction to deal with par- 
ticular subjects involving the conduct of individuals is conferred in 
terms which tend to become increasingly indefinite. 

While, however, "bureaucracy" is a word which we instinctively 
accept as connoting an offensive form of government, we must not 
allow ourselves to be carried away by mere expletives. As the tasks 
of government grow in magnitude, it becomes more and more difficult 
for the legislative authoritv to deal directly and completely with 
many matters whi'.-h come within its powers. It, therefore, is 
becoming increasingly ncessary to devolve upon administrative 
bureaus and commissions the duty not only of executing but to 
some extent of filLug !:■. the details of administrative legislation, 



PKIVATE RIGHTS AND GOVERNMENT CONTROL. 9 

which of necessity must continue to be expressed in terms more or 
less general and comprehensive. 

A serious danger to the citizen in this situation, however, is likely 
to arise from a failure on the part of the legislative authority to lay 
down explicitly and with sufficient care the primary standard which 
fixes the limits within which the power of the bureau or commission 
is to operate, and another danger lies in the fact that the persons com- 
posing the bureaus and commissions under our system of political 
appointments may be deficient in technical learning for the work 
which they are called upon to do. The duties to be performed by 
such bureaus and commissions are sometimes of a highly speciahzed 
character where thoroughgoing study and training are as essential 
as they are in the case of the judiciary. 

There is moreover a growing tendency to make the findings of these 
bodies fhial, which, to be sure, obviates delay and adds a certain 
measure of vigor to administrative action, but on the other hand 
takes away. the wholesome restraint afforded by the consciousness of 
the official that his. acts are subject to review. 

The result of all this is that there is being developed a system of 
administrative government which may easily become autocratic and 
oppressive. The power is conferred in such indefijiite terms that the 
administrative board in exercising its power in efi'ect enacts the rule 
and then proceeds to enforce it. By way of illustration, let me call 
attention to the law passed by Congress creating the so-called Trade 
Commission. Under this law the business operations of anywhere 
from three hundred thousand to half a million corporations are 
placed mider the jurisdiction, and to a large extent at the mercy of 
an administrative board of five men. The law declares that ''unfair 
methods of competition are unlawful," which provision the commisJ 
sion is empowered to enforce. The provision, however, is so general! 
and indefuiite that no two minds are likely to agree as to its scope 
and meaning. The powers of the board in this respect, therefore,! 
can not be determined by reference to any primary standard fur- 
nished by the law itself, and but for the fmidamental guaranties of 
the Constitution — still subject to the saving hand of the courts of the| 
comitry — they would be well-nigh unlimited. We know what the j 
phrase ''unfair competition" means because the courts have told us. I 
It consists primarily in an attempt on the part of one person to 
impose his goods or his business on the public as the goods or business 
of another. The element of fraud is a material constituent. Wliat 
is meant by the phrase "mifair methods of competition" nobody 
knows, only that it means something different from the phrase ' 
"unfair competition," since it is a rule of law, as well as of good, 
sense, that when the language of the law is altered an intent to change 
the meaning is presumed. What, therefore, will the commission 
hold to be "unfair methods of competition"— methods which are 
legally unfair; methods which are economically mifair; methods 
whicli are ethically unfair; or all three and more? Will fraud be 
considered a necessary element in the transaction ? Under this all- 
embracing generahzation business men must look not to the law, but 
to the commission to tell them what they may or may not do. When- 
ever a case of suspected "unfair methods" is presented, the corn- 
mission will not ascertain the facts and cb'p'ply the rule, but will 
ascertain the facts and make the rule. The determination of each \ 



10 PRIVATE RIGHTS AND GOVERNMENT CONTROL. 

case will involve in effect, therefore, the making of a law applicable 
not to future facts, but to facts already past, and the rendering of 
judgment thereon. 

I may say in passing that there are other extraordinary provisions 
in this law which are filled with menace, among them the provision 
empowering the commission "to investigate from time to time the 
organization, business conduct, practices, and management of any 
corporation engaged in commerce," and so on, and for this jjurpose, 
as well as for the other purposes of the act, the commission is given 
"access to, for the purpose of examination, and the right to copy 
any documentary evidence of any corporation being investigated, 
or proceeded against." The effect of this is to vest this board with 
autnority to take possession of and copy all the books and private 
papers of every corporation which happens to be engaged in inter- 
state commerce, whether these books relate to interstate transac- 
tions or not, because the test which determines the power of the board 
is simply that the corporations shall be engaged in interstate com- 
merce. Being so engaged there is no hmit as to the character of 
the business conduct and practices which the board may investigate. 
Surely these provisions are of at least questionable constitutionality; 
first, because they confer a power on the board to deal with matters 
which may or may not relate to interstsite commerce; and second, 
because they empower an administrative board to seize private 
papers and carry away copies of them without legal process and in 
apparent violation of the search and seizure clause of the Constitu- 
tion. But irrespective of this the authority is so dangerous and far- 
reaching that its complete exercise will never long be tolerated by a 
people whose Government has been builded upon the principle that 
the most imperious and necessary of all political rights is the right 
to be secure against the exercise of arbitrary and undefined powers. 
The purpose of this trade commission law is to restrict competition. 
The purpose of the antitrust laws is to enlarge competition. To what 
extent will the administration of the former modify or nullify the 
latter? The business organizations of the country are confronted 
with two sets of statutes, proceeding upon partially antagonistic 
principles. Cases will inevitably arise where it will be difficult to 
determine which principle shall apply — that which forbids or that 
which enforces competition. After a quarter of a century of litiga- 
tion the business world has at length ascertained with some approach 
to certainty what are the limits of its authority to combine. It must 
now take up the task of learning the limits of its right to compete. 
How far the work of the courts in expounding the Sherman law will 
be upset by the administrative enforcement of the trade commission 
law can not be foreseen, but in the meantime the business of the coun- 
r try must suffer another long period of anxious and injurious uncer- 
tainty. The Trade Commission itself has made little if any effort to 
carry into operation the sweeping powers which the law confers, so 
that the mischief is still latent, having had no opportunity of becoming 
manifest. In refraining from exercising these powers thus far the 
commission has shown itself wiser than the law and if that course 
shall be followed permanently we may experience nothing more 
! serious than the amiable efforts of a group of liiglily intelligent and 
i conscientious gentlemen to give some more or less relevant advice 
1 and render some more or less helpful service to the business men of 



PRIVATE EIGHTS AND GOVERNMENT CONTROL. 11 

the coiintrj^; efforts wliich I am bound to say thus far have been 
productiA'^e of much good and no harm. 

Nevertheless, the provisions to which I have called attention 
remain in the law ready to be invoked at any tim(^ with such far- 
reaching and injurious consequences as at present can not be foreseen. 

Not only are the business activities of the country being investi- 
gated, supervised, directed, and controlled in such a multitude of 
ways that the banker, the merchant, and the men of industry gen- 
erally are afloat upon a sea of uncertainty where if they succeed in 
avoiding the mines of dubious statutes by which they are surrounded, 
they are in danger of being blown up by an administrative torpedo, 
launched from one of the numerous submarine commissions by which 
tlie business waters are everywhere infested, but the Government is 
invading and is threatening to more seriously invade the market place 
itself, not as a regulator, but as a participant and competitor. We 
seem to be approaching more and more nearly the point wliere the 
old philosophy that whatever can be done by the individual should 
not be done by the Government even though it may be well done, 
is to be abandoned for the new and dangerous doctrine that whatever 
can be done by the Government, even though it may be badly done, j 
should not be permitted to the individual. 

Steps have quite recently been taken for putting the National 
Government into the business of manufacturing armor plate and 
nitrates for use in making gunpowder, which may, of course, be 
justified as measures for the public defense, but alternative pro- 
vision is made for utilizing the nitrate plants when their product 
is not needed for powder — which, except in time of war, will be 
almost all the time — for the purpose of producing fertilizers to be 
sold to the farmers. While much can be said on the score of economy 
as to the doubtful wisdom of the Government undertaking to make 
its own armor plate, yet after all it does not involve any departure 
from established governmental principles. But it is difficult to 
conceive of any legitimate basis for putting the Federal Government 
into the business of manufacturing manure as a trade commodity. \ 
The Government is building a railroad in Alaska. Some of us i 
opposed that as being a step in the direction of Government owner- 
ship, but some excuse may be found for the action in the theory i 
that the Territory is really Government property and that the same ' 
warrant exists for improving it as existed in the case of the arid 
lands whose reclamation was provided for by act of Congress. But 
Congress has gone quite beyond all this in the passage of the so- 
called "ship-purchase act," which proposes to put the Government 
of the United States into the ocean-carrying trade, as a common 
carrier for hire. The Postmaster General for several years has been 
insisting that the Federal Government should take over and operate 
the telephone and telegraph lines and the demand for Governrnent 
ownership and operation of the railroads is apparently growing. 
Personally I am opposed to all these schemes. Whatever may be 
said as to the power of a particular State or municipality to engage 
in some specific business activity, I have never been able to under- 
stand how the Federal Government with its precisely enumerated 
and delegated powers may constitutionally engage in business. 
Warrant may be found in the post-office clause for the operation of 
the telephone and telegraph lines, but the only authority, even 



12 PRIVATE RIGHTS AND GOVERNMENT CONTROL. 

under the most strained construction, that can be cited as author- 
izing the Government of the United States to become a common 
carrier of goods and passengers by land or sea is the commerce 
clause which gives Congress power to regulate interstate and foreign 
commerce. I have upon another occasion discussed this question 
at some length and I shall not undertake to go into it now further 
than to say that the power which is conferred is to regulate, not 
to do the substantive thing which is the subject of regulation. To 
build a highway or even a railroad may be accepted as a regulation 
of commerce, since its effect is to facilitate commerce, and thus to 
condition or regulate it, but the building of a road and the carrying 
of passengers over the road are two very different things. The 
building of the road may regulate commerce, but the carrying of 
passengers and goods over the road is commerce itself, and, under 
our system, always regarded as a private activity as distinguished 
from a governmental function. Regulation, however, is naturally 
and necessarily a matter for the Government since it is unthinkable 
that one individual should have the power to regulate the activities 
of another individual. Had it been suggested to the framers of the 
Constitution that provision should be made whereby the Federal 
Government might engage in the carrying trade or in any other 
form of private as distinguished from governmental business, cer- 
tainly the suggestion would have been instantly and emphatically 
rejected. The fathers intended that this should be a civil gov- 
ernment; it was no part of their plan that it should ever become 
a business organization. Jealous to the last degree of individual 
rights and liberties their effort was to abridge rather than to extend 
the powers of government. 

I can not imagine any greater misfortune to the people than for 
the General Government to acquire and operate the telegraph, 
telephone, and railroad lines of the country. The duties imposed 
upon that Government have already grown to vast proportions. 
To add the burden of operating all the railroads and telegraph 
and telephone lines would be to invite disaster. Persons now in 
the service of the Government already number over a million. 
If to this number we add all the employees in the service of the 
great private corporations now operating these instrumentalities, the 
aggregate three millions or more, if organized — as they undoubtedly 
would be organized — would practically dictate the policy of the 
Government. If to the annual rivers and harbors "pork-barrel" 
and the biennial public buildings ''pork-barrel" we should add 
an annual railroad "pork-barrel" bill, the public expenditures 
would increase to such a sum that the $3,000,000,000 Congress 
would be looked back to as an example of political self-restraint 
and economy. The Congressman from every district in addition 
to asking for a public building, would demand a new railroad sta- 
tion, a branch railroad, and other expensive additions. Between the 
effort to decrease the freight rates in order to cidtivate the votes 
of the shippers and consumers, to increase wages in order to cultivate 
the labor vote, and the "log rolling" incident to the making of 
permanent improvements in order to make each Congressman 
solid with his constituents, the annual expenditures would be in- 
creased to a point beyond the wildest imaginings. 



PRIVATE RIGHTS AND GOVERNMENT CONTROL. 13 

The sliip-purchase act in one aspect presents the evil of Government 
ownership in its worst form, for it does not propose that the Govern- 
ment shall completely occupy the field, but that it shall partially oc- 
cupy it in competition with its own citizens. The business, it is prac- 
tically conceded, will not be carried on at a profit, but probably will 
be carried on at a loss, which of course must be recouped from taxes 
imposed upon the private shipowners in common with the other 
citizens of the country. Think of a Government in time of peace — 
for I recognize that anything may be justified in time of war — 
embarking in a business enterprise and taxing its o\mi competitors 
to the end that the business may be carried on to their injury and 
perhaps to their ultimate ruin and bankruptcy, for successful com- 
petition between the Government to whom profits are of no concern 
and the citizen to whom profits are vital is of course impossible. 

If the Government were bound to an observance of the same 
conduct which it enjoins upon the citizen, the situation might pre- 
sent a case under the law forbidding "unfair methods of competition" 
for the thoughtful consideration of the Federal Trade Commission. 

The regulation and control of merely self-regard ing conduct, the 
multiplication of administrative boards and similar agencies, and 
the invasion of the field of private business, which I have thus far 
particularized, illustrate rather than enumerate the various tendencies 
of modern legislation and Government to depart from those sound 
and wholesome principles which hitherto have been supposed to 
operate in the direction of preserving the individual against undue 
restraint and oppression. 

Class legislation, the most odious form of legislative abuse, is by 
no means infrequent. In State and Nation statutes are to be found 
which select for special privilege one class of great voting strength 
or set apart for special burdens another class of small numerical 
power at the polls. 

Next to the separation and distribution of the legislative, execu- 
tive, and judicial powers, the most important feature of our plan 
of government is the division of the aggregate powers of government 
between the Nation and the several States, to the one by enumeration, 
and to the other by reservation. I believe in the most liberal con- 
struction of the national powers actually granted, but I also believe 
in the rigid exclusion of the National Government from those powers 
which have been actually reserved to the States. The local govern- 
ment is in immediate contact with the local problems and should be 
able to deal with them more wisely and more effectively than the 
General Government having its seat at a distance. The need of 
preserving the power and enforcing the duty of local self-government 
is imperative, and especially so in a country, such as ours, of vast 
population and extent, possessing almost every variety of soil and 
climate, of greatly diversified interests and occupations, and having 
all sorts of differing conditions to deal with. There is, unfortunately,! 
however, a constantly growing tendency on the part of the General 
Government to intrude upon the powers of the State governments, 
more by way of relieving them from responsibilities they are willing to/ 
shirk than by usurping powers they are anxious to retain. EspecialW 
does any inroad or suggested inroad upon the Federal Treasury foif 
State purposes meet with instant and hearty approval. The grav^ 



I 



14 PMVATE EIGHTS AND GOVERNMENT CONTEOL. 

danger of all this is that the ability as well as the desire of tl 
of the several States to carry their own burdens and corr* 
own shortcomings will gradually lessen and finally disappt 
the result that the States will become mere geographical sud 
and the Federal character of the Nation will cease to exist s 
more or less discredited tradition. 

These and many other matters afford temptation to furl' 
cussion to which I can not yield without unclue trespass uj > 
patience, which I feel has already been quite sufficiently tax 

Fifty years ago a great French writer — ^Laboulaye, I think n 
speaking through the lips of one of his American characters^ i 
these words of wisdom and of power, words which are as tru 
as they were when they were written : 

The more democratic a people is, the more it is necessary that the ind. 
strong and his property sacred. We are a nation of sovereigns, and every" i 
weakens the individual tends toward demagogy; that is, toward disorder : 
whereas everything that fortifies the individual tends toward democracy; t' 
reign of reason and the Evangel. A free country is a country where each 
absolute master of his conscience, his person, and his goods. If the day e 
when individual rights are swallowed up by those of the general interest, ii ..• ..i,' , 
will see the end of Washington's handiwork; we will be a mob and we ■virill iiavp a 
master. 

It is now as it has always been, that when the visionar m ' 
demagogue advocates a new law or policy or scheme of gove. 
which tends to curtail the liberties oi the individual he loudl 
that he is acting for the general interest and thereby surroundb uj- 
propaganda with such a halo of sanctity that opposition or overi! 
candid criticism is looked upon as sacrilege. 

But the time has come when every true lover of his count. '. nut 
refuse to be misled or overawed by specious claims of this ch; iHC'.vr 
Individual liberty and the common good are not incompatible, b'i< 
are entirely consistent with one another. Both are desirable and boi v 
may be had, but we must demand the substance of both and no' 
accept the counterfeit of either. Crimes, we are told, have been 
committed in the name of liberty. But either the thing tli.ur m'^;- 
called a crime was no crime or the name of liberty was profaued, ;.ts 
though one should become an anarchist in the name of order. Liberty 
and order are the two most precious things beneath the stars. The 
duty which rests upon us of this generation is the same that has 
rested upon all the generations of the past: to be vigilant to toe '^rrd 
iGsolute to repel every attempt, however insidious or indiro! , u 
destroy liberty in the name of order, or order in the name of iib I;,. , 
for the alternative of the one is despotism and of the other the mob. 

o 



